TOV Injury and Safety Blog

Federal Court allows injured workers to sue employer, insurer and "independent" [IME] doctors for fraud

A group of Cassens Transport Company employees who had been injured on the job sued Dr. Saul Margules, Cassens, and Cassens' self-insured claims manager, Crawford & Company, alleging that the three conspired to deny benefits to injured workers.  The suit alleged that Crawford consistently retained unqualified and biased physicians to render fraudulent reports disputing the workers' injuries or medical condition.

Underage press operator cannot sue owner of unguarded press

Joshua Sparks sued Century Tool & Die and several other defendants after severely injuring both hands operating an unguarded press.  The Court of Appeals ruled that the lower court erred in deciding the factual issue of who owned the press, but still upheld the dismissal of the claim against Century.  It ruled that the owner of a press owes no duty to assure that it is properly guarded once it is provided to other parties to operate.  Of course, the underaged employee cannot recover damages from his employer, either, because he is limited to workers' compensation benefits.  And, most likely, since he retains some residual earning capacity and worked for a low wage, he will get nothing in the way of wage loss if the Republicans are successful with "worker's compensation reform."

House Republicans vote to reduce workers compensation in Michigan

This week the Republicans in the State House passed a new law that would reduce the benefits paid to injured employees.  Among the changes:  a requirement that the employee pay out of pocket to seek a second opinion or to see his own doctor; and a rule that all injured employees whose disability is not total must be assumed to have residual earning capacity for which the employer's insurer is given credit. 

As a result, a minimum wage worker who lost an arm or a leg, for example, would not receive normal comp (maxed out at 2/3 of net pay):  he or she would be assumed capable of working another minimum wage job (convenience store clerk) and denied any wage loss--whether he can find such a job or not. 

Republicans are dismantling the safety net entirely for low wage workers; the Chamber of Commerce, who pushed this bill, should be ashamed.  Some Republicans think the bill goes too far and could alienate voters; they have called into question whether it should be confirmed by the State Senate and the Governor.  The Democrats, in the minority, have no effective say in the issue.

Verdict finding disabled child cannot qualify for Disability Civil Rights in school is upheld

Jeffrey and Karen Tyler sued the Fowlerville Community School District on behalf of their cognitively impaired daughter, Sarah.  Sarah was molested when a teacher allowed her to study in a private viewing room adjacent to their classroom.  Sarah  was in the eighth grade, but functionally a second grader at the time of the incident and her parents argued that the school system failed to provide her a safe environment, taking into account her disability.

U.S. Supreme Court holds vaccine makers immune from product design lawsuits

This week, the U.S. Supreme Court voted 6-2 to grant immunity to vaccine makers.  The ruling was in the case of Bruesewitz v. Wyeth, and arose out of Hannah Bruesewitz' parents' claim that she suffered a permanent brain injury after being administered a standard diptheria, tetanus and pertussis vaccine.  Hannah's parents claimed  that Wyeth negligently designed the vaccine, but the Court held it didn't matter:   the Justices concluded that a Congressional bill intended to provide limited compensation to some patients who suffer side effects impliedly created immunity for the  manufacturers--even though the bill does not say that.  

Appellate Court upholds verdict for future wage loss

Bradley Ross sued David Plunkett and Pro-Med Delivery after Ross was badly hurt in a car accident on I-696 in Oakland County.  Ross claimed that Plunkett suddenly swerved into his lane and then stopped abruptly, leaving Ross no time to avoid a collision.   Plunkett presented contradictory evidence, suggesting that his driving was appropriate and not a cause of the collision.  Ultimately, the jury held both drivers to be fifty percent at-fault and awarded Ross one-half of his future damages.  Plunkett's insurer filed an appeal raising a number of issues in the management of the case.

Meta-analysis confirms that NSAIDs increase risk of heart attack and stroke

Swiss researchers recently evaluated 31 different studies, involving 116,000 patients taking non-steroidal anti-inflammatory pain medications.  They concluded that taking some form of these medications (Ibuprofen [sold as Advil or Motrin], Naproxen, Celebrex, Vioxx, etoricoxib, Prexige, and diclofenac were the drugs studied) approximately doubles a patient's risk of heart attack or stroke---from about 1 patient per 100 patient years to 2 patients per hundred patient years. Certain risks may increase 3 or 4 times, depending on the medication.  The authors noted that a related medication, Vioxx, was removed from the market in 2004 because it presented an unacceptable heart attack risk.   Prexige never won approval by the FDA, but was sold elsewhere.

The reports of the meta-analysis relate that the particular risk varies depending on the particular non-steroidal anti-inflammatory, with Ibuprofen carrying the greatest risk of stroke. (Three times the risk of patients not taking the medication.)  The authors also noted that the risk increases with increased dosage or prolonged treatment periods.  The actual study is reported in the January 11 edition of the British Medical Journal.  Naproxen appeared to be the least harmful of the NSAIDs, and experts note that the absolute risk of using the medication may be outweighed  by quality of life issues in certain chronic pain patients or when use is short-term or balanced by the elimination of other cardiovascular risk factors.

Doctor with Asperger's Disorder cannot maintain ADA claim against residency program

Martin Jakubowski sued the Christ Hospital in Ohio claiming that it failed to accommodate his disability under the Americans with Disabilities Act.   Jakubowski was diagnosed with a form  of Asperger's Disorder which clearly impacted his progress in the Christ Hospital's Family Practice residency program.  His suit was based on the hospital's failure to make reasonable accommodations for his disability. 

Executive denied disability by Guardian Life

John Schwalm sued his company's long term disability insurer, Guardian Life, after it stopped paying benefits.  Schwalm was the CEO of a technology company when he injured his back while lifting his luggage on a 1999 business trip.  Ultimately he required three surgeries, including a spinal fusion at L-4, L-5, and endured complications that left him with fairly severe chronic pain.  In 2003,  he was approved for disability for two years, based on his disability from his "own occupation."  At the end of two years, he was required to prove disability from any gainful work "consistent with [his previous] level of insured earnings," which was $140,000.00.

Man can sue for exacerbation of his previous injuries

Luke Arntz's car struck two of Mark Laper's cows that were wandering loose in the road in Montcalm County.  The Defendants sought to dismiss his claim, arguing that he had not proved any real injury because by June of 2007, he was walking 8 miles a day, had stoped taking his medications and had returned to his pre-accident level of pain and disability.  The trial judge apparently misunderstood the Defendants' argument and ruled that since Arntz was "back to normal" within two months of the injury, he could not prove that any of his problems were related to the April, 2005, collision.  The higher court reversed and sent the case back to the trial court for trial.  It pointed out that even if Defendants' evidence established beyond dispute that Arntz was fine within two years, this finding would not exclude his right to prove that he suffered pain and disability in the interim. 

Since Laper's liability arose out of failing to confine his animals and not "out of the use, ownership and maintenance of a motor vehicle," he was not entitled to the "serioum impairment" threshold defense in the no fault statute.

Quadriplegiac cannot sue camp for injuries suffered on water slide

Robert Watkins sued the St. Francis Camp on the Lake after he suffered spinal injuries on the camp water slide.  Watkins is a mentally competent 34 year-old who was confined to a wheelchair due to cerebral palsy.  He also suffers from spinal disc disease, arthritis, and speech disorders, although he does not have an appointed guardian.  When he enrolled in the camp, his mother explained these problems in his camp application and recommended that his involvement in certain activities be limited.

Football player's family sues Riddell

The LA Times reported today that the family of Edward Acuna has filed suit against Riddell, alleging a defect in the padding in the front of Acuna's football helmet.  Acuna suffered a subdural hematoma that left him permanently partially paralyzed during a football game in October of 2009.  The family's attorney alleges that Riddell was aware of the padding problem in the helmet for a decade prior to Acuna's injury.

Court upholds verdict for medical expenses only

John McMillan sued his landlord after he injured his shoulder while descending the basement stairs of his rented home.  The handrail allegedly gave way, causing McMillan to fall and injure his shoulder.  At trial, the jury awarded McMillan his medical expenses of approximately $4,000.00 but awarded him nothing for lost wages or pain and suffering.  McMillan appealed arguing that it was inconsistent and against the great weight of the evidence for the jury to award no damages beyond the medical expenses.  His attorneys also argued that the verdict reflected an anti-judicial or anti-plaintiff bias because post-verdict discussions with the all-white jury suggested the jurors were motivated by a distaste for the entire procedure, including the all-black cast of parties and witnesses.

State Farm cannot dispute PIP benefits with provider, and subpoeana patient records, without notice to injury victims

State Farm filed a "complaint for discovery" against Broe Rehabilitation, seeking to force the company to turn over to it the medical records of State Farm insureds who had received treatment at Broe.  State Farm also sought to take the testimony of treatment providers under oath.  State Farm argued that under the No Fault Act, it was entitled to obtain these records to investigate fraud, and that it was not obligated to inform the involved patients or allow them to intervene to justify the care provided. 

Court addresses interplay of No Fault insurer's obligations and school district's legal duties

Under Michigan law, public school districts owe a duty to provide certain services to children who have special needs.  These services are usually defined through the IEP [individual education program] process:  the IEP is a detailed, comprehensive examination of the child's needs and it involves the child's parents, teacher(s), medical records and school system specialists.  An IEP conference is held annually and the child's educational needs are compiled in a detailed report.  In some cases, the "needs" identified in the IEP also fall within the obligations of a no fault insurer required to provide for the educational and rehabilitational needs of a child injured in a motor vehicle collision. 

Court upholds sidewalk "trip and fall" judgment against City of Flint

Gary Hovanec suffered permanent injuries when he fell while power-walking on the sidewalk after his second shift ended.  Through its employees, the City of Flint agreed that the guardrail that tripped Hovanec was not "reasonably safe" and it also admitted that there had been unreasonable delay in responding to the condition.  Both sides waived a jury and asked the Court to render judgment.  Ultimately the judge gave a reasoned basis for a judgment in excess of $800,000.00, with 25% comparative fault.  The City appealed, seeking remittur or a ruling that the damages were "against the great weight of the evidence."  The Court of Appeals unanimously upheld the lower court's decision, finding it was supported by the facts of the case.

University of Michigan study sheds light on post-traumatic stress disorder

U of M researchers recently published a study examining the genetic fingerprint of DNA from 100 Detroit residents, including 23 individuals suffering from post-traumatic stress  disorder.  In total, they examined more than 14,000 genes.  Among their findings was a propensity for certain immune system-controlling genes to become over-active in persons suffering from PTSD.  Their interpretation?  While it has long been believed that diseases and psychiatric conditions represent an "interplay between social and biological factors," these findings "support the idea that exposure to a traumatic event can trigger genetic changes that alter the body's immune system."  The result is severe and dysfunctional anxiety. 

Doctor must provide limited discovery into health history, substance abuse

James M. Tschirhart was sued by the family of Melvin Tomich after Tomich failed to survive gall bladder surgery.  The Tomich family alleged that Tschirhart was negligent in failing to discontinue Tomich's aspirin therapy, in failing to monitor Tomich post-operatively and in failing to obtain a proper cardiac clearance for surgery.  Tschirhart initially failed to answer the complaint and was defaulted.  His attorneys then sought to set aside the default, alleging a medical condition that had interfered with his ability to respond.  The Court set aside the default, but also allowed the victim's family to demand limited information about Tschirhart's medical history, including any history of substance abuse during the previous ten years.  Tschirhart's insurer appealed this ruling.

Insurer's denial of ERISA long-term disability benefits is upheld by Sixth Circuit

Maribea Balmert sued the Reliance Standard Life Insurance Company to resinstate her disability insurance.  An accountant-tax analyst for Big Lots, Balmert also suffered from rheumatoid arthritis.  In 2004, she stopped working because of symptoms she believed were related to the arthritis, including pain and numbness in her hands which she attributed to keyboarding demands and stress.  Her doctor found little evidence of synovitis in her hands and referred her for neurological and psychological evaluation, while recommending a temporary medical leave.  He believed that other potential etiologies needed to be investigated.

Court of Appeals addressed alleged improprieties in verdict against Waste Management

A successful Michigan trial attorney once claimed, in essence, that "a milion dollar verdict is a $250,000.00 settlement that a defendant was too bone-headed to resolve."  The case of Freed v. Salas, Healthlink Medical Transportation Services and Waste Management of Michigan, is a case in point:  Waste Management rejected a settlement of $500,000.00 in this wrongful death case and wound up owing a judgment of more than 6 million dollars.  Attempting to recover from its error in judgment, Waste Management filed an appeal, arguing all manner of errors in the conduct of the trial. 

Court upholds insurer's second-guessing of doctor's long-term disability

David B. Cox was awarded long-term disability insurance and Social Security disability after suffering an event which his neurologist described as a stroke.  After paying benefits for two years, the ERISA insurer, Standard Insurance Company, "reevaluated" Cox's disability and determined that he could return to the practice of Family Medicine.  Cox filed an administrative appeal, which was denied, and then filed suit in Federal Court to challenge the decision.

ADA standards and regulations set to change

On September 23, the Equal Employment Opportunity Commission published its proposed new regulations for administering the Americans with Disabilities Act, which was amended effective January 1st.  According to experts, the new regulations will "significantly lower the standard for an employee to establish that he or she has a covered disability."  The amendment is expected to move the interaction under the ADA from a fight over whether an employee is qualified for consideration under the act to a fight over the employer's duty to make reasonble accommodations.  From the amendment forward, the employee's proofs will primarily be directed to whether the "diability" limits an employee's ability to work or is perceived to perform his or her job.  The new regulations will also take into account "mitigating measures" such as medication, eyeglasses, hearing aids and other measures which formerly precluded an employee from qualifying as "disabled" and eliminated any duty of accommodation.

Sixth Circuit addresses statute of limitations issues under ERISA

In Rice v. Jefferson Pilot Financial Insurance Co., the Sixth Circuit upheld the dismissal of a disability suit brought by a floor covering installer who suffered from depression and chronic fatigue syndrome.  The installer, Jerry Rice, was deemed disabled by the Social Security Administration, but his claim for disability benefits under his employer's ERISA contract was denied by the insurer.  When he subsequently sued, the lawsuit was dismissed in response to Jefferson Pilot's argument that Rice did not comply with the three-year statute of limitations expressly incorporated into the disability insurance contract. 

Doctor's ERISA disability benefits reinstated

Lois Kramer practiced as an O.B. Gyn specialist in the Henry Ford Health System before developing severe and chronic neck pain.  She underwent physical therapy and surgery and was prescribed narcotic pain medications and sleep aids in the course of several years of treatment.  Eventually, she and her peers at Henry Ford concluded that she was no longer able to practice her occupation safely, and she applied for disability benefits under policies purchased from the predecessors of the UNUM Life Insurance Company.  Unum paid the benefits for several years before determining that her entitlement to benefits should be revoked.  Kramer filed suit and the Federal District Court of the Eastern District of Michigan held that she was entitled to benefits under one of her two policies, but not under the other:  the Sixth Circuit heard her appeal and granted benefits under both policies.

Michigan Blue Cross agrees to provide limited benefits to autistic insureds

On June 20, 2009, Blue Cross Blue Shield of Michigan agreed to pay one million dollars to settle a class action brought by 100 Michigan families.  The families had argued that the health insurer should be providing coverage for behavioral therapy to young children diagnosed with autism.  Most private Michigan health insurers do not provide coverage for autism, however, BCBS announced in May that it would provide limited coverage for intensive early intervention.

Expenses for care of catastrophically injured Michigan no fault victims

Attorneys and the families of catastrophically injured no fault victims continue to watch the Michigan Supreme Court to see what will happen with PIP expenses in the situation where the families avoid institutionalization.  From 1974 until a few years ago, the Supreme Court took the position that families could be fully compensated for keeping a catastrophically-injured loved one out of an institution by providing care for him or her.  The Court held that if an expense was payable to an institution, it would be payable to the family, as well. 

Previously injured man cannot have suffered a serious impairment

Three of the more conservative Judges on Michigan's Court of Appeals recently held that a previously disabled man could not suffer a "serious impairment of bodily function" as a matter of law.  Theon Crumpler had suffered a head injury in a motor vehicle collision in 1986 and required 24-hour attendant care because of his difficulty walking and his need for help with the requirements of daily living.  When he suffered additional injuries in a 2001 accident, the Court held that his difficulties with seizures, with standing or with negotiating stairs,  and with fine motor tasks, were not adequate to constitute a "serious impairment" of his already disabled life.  The judges said that his already-humbled life was not "materially altered".  That might depend on the perspective from which it was viewed, we suspect.  In any event, the jury was not allowed to make that decision.

Can a companion accompany you to a so-called "independent medical examination"

Michigan auto injury victims are currently placed in a quandary if their no fault insurer wants them to attend an IME and the victim would like to impose some reasonable conditions on his or her attendance.  Up until 2007, it was believed that injury victims enjoyed the right to secure a court's intervention and supervision to assure that so-called independent medical examinations were conducted reasonably and with proper controls.    Those rules still apply to "independent" examinations sought in the context of all other (non-no fault) circumstances. 

Michigan courts have regularly required that the exam be conducted by a specialist reasonably close to the victim or that mileage or overnight expenses be paid.  Other conditions we have seen imposed included a limit on the number or frequency of the examinations, and the right to have a companion accompany the victim or to have the victim's attorney observe the examination, for example.

Defendant cannot avail itself of unfair arbitration provision without evidence of victim's intent

One of the Federal District Judges serving in the Eastern District of Michigan had occasion this month to address a controversy regarding an alleged binding arbitration agreement.  In Estate of Vunies High v. Capital Senior Living, Judge David Lawson wrote an excellent opinion addressing the issues involved in a contract of adhesion attempting to deny residents of an assisted living facility of their right to a jury trial.

Searching for information on good doctors and particular diseases and conditions

The New York Times recently published an excellent article helping to direct readers to better information on doctors, institutions and particular diseases and conditions.  The article was authored by Pauline Chen, M.D., and titled "In Search of a Good Doctor".  Among her suggestions:

Dismissal of "serious impairment" claim upheld on appeal

The Saginaw case brought by Julie Garcia against the driver who injured her, Dale Doyle, was dismissed in the trial court.  The Court of Appeals upheld the dismissal, finding that Ms. Garcia did not satisfy the Taylor Supreme Court's Kreiner standard of "serious impairment".  Ms. Garcia suffered a fracture of her seventh cervical vertebra.

CT scans and MRIs may not be reliable indicators of the source of pain

On December 9, the New York Times published an article addressing the increasing controversy over abnormal findings on CT scans and MRIs.  The Times talked to the authors of two separate studies that found radiological abnormalities in just about as many healthy, pain-free individuals as were present in patients seeking treatment for pain.  The studies involved patients with knee pain and back pain.

"Independent" roofer's right to collect workers compensation

An insurer recently lost another round in the ubiquitous battle over whether an employee can be defined as an independent contractor and denied the right to collect workers compensation.  Many employers, some as large as FedEx, attempt to treat their employees as independent contractors in an effort to minimize employee benefits and expenses. 

Can a doctor who has been sued insist on a private meeting with the Plaintiff's physican?

There has been significant disagreement among authorities in Michigan over the interaction of the HIPAA privacy regulations and Michigan's statutory waiver of the physician-patient privilege that occurs when an injury victim files a civil action. Insurers for doctors, in particular, have been very aggressive in seeking the right to conduct private interviews with the other physicians who treated an alleged victim of malpractice.

Can an involuntary commitment be false imprisonment if it is not malpractice?

In Ziegler v. Desiree Aukerman and W.A. Foote Memorial, the Court decisively answered that question "No".  After Ziegler was involuntarily committed as a suicide risk, she sued the hospital and a cooperating police officer for false imprisonment.  She did not comply with the requirements necessary to establish a medical malpractice claim, alleging that her claim was a separate, independent cause of action.  The Court properly rejected that theory, noting that the proper practice of medicine may result in an involuntary commitment, and that in order to constitute an assault or a wrongful detention, the commitment must be professionally negligent.

Senate passes bill that would restore the ADA

The Americans with Disabilities Act was passed in 1990 to discourage discrimination against employees with disabilities.  Unfortunately, the law itself was severely handicapped by a series of conservative Supreme Court rulings that denied ADA protection to any condition that could theoretically be controlled by medication.  Thus, if an employer discriminated against employees with a conditions such as diabetes, epilepsy or mild to moderate psychiatric or psychological disorders, the employee was powerless to respond.  This bill, like the bill passed earlier in the House on a vote of 402 to 17, would restore the protections which the Congress intended, but which the conservative Supreme Court refused to recognize.

Sixth Circuit addresses Hartford's conduct in discontinuing benefits

In Gaeth v. Hartford Life Insurance Co., the Sixth Circuit reversed an award of attorneys fees to Mr. Gaeth.  The trial court had held that Hartford acted arbitrarily and capriciously in denying Gaeth's long-term disability payments based only on ten minutes of surveillance per day and without reviewing his current medical records.  The appellate court agreed with this decision, however, it reversed the trial court's award of attorney fees, finding that Gaeth's action--even though it might deter similar conduct by Hartford in the future--did not qualify as one having a "common benefit" under ERISA laws.  Therefore, no award of fees could be supported unless and until Gaeth proves that he remains disabled under the definitions in the policy.

Efforts to create a joint registry continue to fail

Last year, in the U.S. alone, nearly one million knees and joints were implanted in patients. Worldwide, the U.S. is the number one manufacturer and the number one user of joint implants.  Unlike other countries, however, we have no joint registry and there is no organized follow-up of implant patients.  As a result, Medicare, Medicaid, private insurers and individual patients literally spend millions of dollars on defective implants that are not identified on a timely  basis.   

Flaws in Federal ERISA law

The Associated Press carried an article today, discussing some of the problems with ERISA rules promulgated by the Federal government.  It provided one particularly heart-wrenching example.  A thirty year-old cancer victim's young family was denied his insurance benefits after his employer changed insurers during his disability period.  Under the new insurer's plan, disabled workers were required to report to work for one day to maintain coverage.  The worker, Thomas Armschwand, was suffering from cardiac cancer and on disability, but could have worked one day:  unfortunately, no one told him he needed to and when he died, his family was denied more than a quarter million dollars of coverage.  Because the plan was ERISA-sponsored, he could not sue either the insurer or the human resources people who had reassured him that he was covered without advising him of the "one-day work" requirement.

Engler majority's constipated "standing" requirement precludes Allstate from over-reaching

Last year in an environmental case, the Engler majority of the Supreme Court pronounced a new and restrictive rule that precluded many interested persons from bringing disputes before the courts.  It restricted the number of people who have "standing" to challenge a wrong.  This misguided holding had one unexpected advantage last week, when it deprived Allstate Insurance Company of the right to avoid paying Personal Injury Protection benefits to a Physical Therapy provider.

Victory for employee in overturning insurer's denial of long-term disability

In Degennaro v. Liberty Life Assurance, Judge Robert Jonker of the Western District of Michigan overturned Liberty's denial of long term disability (LTD) to Ms. Degennaro.  She worked for Spectrum Health and had a number of serious medical problems.  Because her LTD policy was provided through her employment, the terms of the policy were governed by Federal ERISA law.  Liberty had granted her LTD benefits in 2004, however, in a manner typical of insurers, it tested her persistence and resources by "reevaluating" and denying her benefits in 2006.  She fought, and in 2008, the Court ruled that Liberty's decision was arbitrary and capricious.  It did not reinstate her benefits immediately, however.

Back injuries, degenerating spinal conditions and no fault

  People who suffer back injuries superimposed on pre-existing degenerative back problems are faced with many problems in seeking medical expense coverage and fair compensation.  Morrison v. State Farm helps to elucidate some of the issues.

Michigan's Supreme Court won't protect insurers from fraud

   While the activist majority of Michigan's Supreme Court will stretch a long way to protect the insurers and Chamber of Commerce who secured their appointment to the Court, they ruled on June 25 that they would not protect insurers from outright fraud claims.  The majority had earlier reversed 19 years of no fault law to require that suit on no fault PIP benefits be brought within one year of the date of any expense or service.  Sharon Strozewski sued AAA alleging that the Auto Club had defrauded her of proper benefits for caring for her two severely disabled children; this week the Court held that if she proved all of the elements of fraud, she could win her case, despite the one-year limitation, because actual fraud has a longer statute of limitations.

No violation of the ADA where MS patient-employee can no longer drive and driving is an "essential function"

  In Blank v. Pathways Community Mental Health, the Court upheld the Plaintiff's dismissal from her position as a life skills technician, after she was diagnosed with Multiple Sclerosis.  The Employer and the Court relied heavily upon her Job Description which provided that the ability to drive to client homes and to provide transportation was an "essential functon" within her job.  Under existing definitions of the ADA and Michigan's Handicapper Civil Rights Act, the employer is not obligated to accommodate by finding the disabled employee a new job or re-defining an existing job.

Potential new regulations under the Americans with Disabilities Act

Noting that all of us are, for the most part, merely temporarily "abled", the Federal government has proposed sweeping new regulations pursuant to the ADA.They were published in the Federal Register on Tuesday, allowing 60 days for public comment.  As one might imagine, the Chamber of Commerce has attempted to exercise its muscle to negate the regulations, despite straightforward exemptions and reservations applicable to small businesses.  The Bush Administration has inserted a "safe harbor" provision so that small businesses will be exempted from the improvements if they spent one percent of their gross revenue in the prior year removing obstacles.

Today, the Census Bureau reports that 51 million Americans have a disability, and two-thirds of those are severe impairments.  That number and proportion will increase as the population ages.  By 2010, the government estimates that two percent of the population will be utilizing mobility devices.  As the population continues to age, the number of people who are challenged by hearing problems or mobility limitations will increase significantly.

The rules also confirm access for guide dogs and other service animals in public places, but also define the circumstances under which access may be denied.  They confirm access for mobility devices but also allow malls, amusement parks and shopping centers to impose reasonable restrictions on Segways, golf carts and the like.